Heat-related citations against roofer vacated in general duty clause testPosted On: Mar. 1, 2019 12:04 PM CST
The Occupational Safety and Health Review Commission vacated citations against a commercial roofing company in a split decision in a closely watched case that tested the U.S. Occupational Safety and Health Administration’s ability to issue citations under the Occupational Safety and Health Act’s general duty clause for heat-related hazards.
In Secretary of Labor v. A.H. Sturgill Roofing Inc., the review commission considered arguments in a case in which an administrative law judge affirmed a serious citation issued against the company for not adequately implementing a heat illness prevention program in violation of the clause and a citation for not providing adequate training to its employees for heat-related hazards.
OSHA inspected the workplace in August 2012 following the death of a temporary employee, according to review commission documents. The 60-year-old man – who had various pre-existing medical conditions, including hepatitis C and congestive heart failure – began work at the site at 6:30 a.m. and was tasked with standing near the edge of the roof where other employees brought him a cart full of cut-up pieces of roofing material that he then pushed off the roof into a dumpster. The assignment was intentionally made by the foreman because it was the temporary employee’s first day on the project.
When the temporary employee began his work, the temperature was about 72°F with 84% humidity and there was no dispute that the foreman encouraged all employees to utilize the access to ice, water, rest and shade, without fear of reprisal, according to review commission documents. But around 11:40 a.m., with the temperature at that point reaching about 82°F with 51% relative humidity, he collapsed and began shaking. Emergency medical personnel took him to the hospital where his core body temperature was determined to be 105.4°F. He was diagnosed with heat stroke and died three weeks later from complications from heat stroke, according to the coroner.
To prove a violation of the general duty clause, the Secretary of Labor must establish four elements: that a condition or activity in the workplace presented a hazard, that the employer or its industry recognized the hazard, that the hazard was causing or likely to cause death or serious physical harm and that a feasible and effective means existed to eliminate or materially reduce the hazard. Sturgill contended that the secretary failed to prove any of these elements.
“We agree that proof of at least two of these elements – the existence of a hazard and a feasible means of abatement – is lacking, and therefore find that the Secretary has not met his burden of proving the alleged violation,” Commissioners Heather MacDougall and James Sullivan said in vacating the citations.
For example, the law judge erred in relying on the National Weather Service chart to establish the existence of the alleged hazard at Sturgill’s worksite on Aug. 1 because the secretary failed to show that any of the chart’s warnings applied to the conditions present that morning, they said. The two commissioners also rejected the secretary’s argument that the occurrence of the temporary employee’s illness alone was evidence that a heat hazard was present at the worksite on the day in question. “This reliance is unfounded,” they said.
“Moreover, it is undisputed that (the temporary employee) had pre-existing medical conditions,” they stated. “Yet the Secretary and our dissenting colleague would have us reason backwards to make a direct causal connection between (the temporary employee’s) diagnosis and the conditions at the worksite without any credible supporting evidence.”
Ms. MacDougall also separately expressed concern that the review commission was asked in this case to “construe the general duty clause to cover work situations in ways that Congress never intended and to unreasonably stretch longstanding Commission precedent by applying the provision to broadly-defined risks inherent in the work being performed.”
Review commission and court precedent requires that to constitute a cognizable hazard under the clause, a worksite condition must pose more than the mere possibility of harm and that the secretary – to comport with due process – must define the hazard that he charges an employer with allowing to exist at its worksite in a manner that apprises the employer of its obligations and identifies conditions or practices over which an employer can reasonably be expected to exercise control, she said.
“Simply defining the hazard as ‘excessive heat’ as the Secretary has done here, falls far short of meeting these well-established requirements, she said.
Mr. Sullivan agreed with the concerns expressed by Ms. MacDougall in connection with defining the hazard in this case as excessive heat, but also found that the secretary had to prove that Sturgill could have reasonably foreseen the incident occurring given all of the facts available to it prior to the incident and not simply that there was a risk of harm based on an expert’s later opinion as to what constituted a heat-related exposure risk.
Commissioner Cynthia Attwood dissented from the decision, finding that the secretary established all the elements of the alleged general duty clause violation and that Sturgill failed to adequately train the temporary employee regarding measures to avoid the heat-related illness hazard and the signs and symptoms of that hazard, according to the decision.
“First, I disagree with the majority’s summary dismissal of the NWS heat index chart as insufficient to support the finding of a hazard here,” she said.
The temporary employee’s diagnosis of heat stroke, which was “supported by all of the credible medical evidence” showed that conditions at the worksite presented a heat hazard, Ms. Attwood said.
The law judge properly credited the medical opinions of the employee’s attending physicians at the hospital and of the coroner over Sturgill’s expert witness, she said. She also found the secretary’s expert testimony that the roof conditions presented a heat-related illness hazard “both reliable and compelling” and said her colleagues’ decision to give his opinion “little weight makes little sense.”
Robert Dunlevey, Dayton, Ohio-based senior counsel at Taft Stettinius & Hollister LLP and the lawyer for Sturgill, said company officials were “elated” over the review commission’s decision to vacate the citations, particularly because OSHA citations can raise questions about a construction contractor’s safety record and prevent them from being allowed to bid on contracts.
“If your safety record is not good, they don’t give you the privilege of bidding on the job because they don’t want unsafe companies on the project,” he said. “This has been a cloud over the company for several years and now that cloud is totally lifted.”
An OSHA spokeswoman declined to comment.